Texas 2013 - 83rd Regular

Texas Senate Bill SB746 Compare Versions

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1	1	By: Nelson, et al. S.B. No. 746
2	2	(Kolkhorst)
3	3
4	4
5	5	A BILL TO BE ENTITLED
6	6	AN ACT
7	7	relating to unlawful acts against and criminal offenses involving
8	8	the Medicaid program.
9	9	BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
10	10	SECTION 1. Section 36.002, Human Resources Code, is amended
11	11	to read as follows:
12	12	Sec. 36.002. UNLAWFUL ACTS. A person commits an unlawful
13	13	act if the person:
14	14	(1) knowingly makes or causes to be made a false
15	15	statement or misrepresentation of a material fact to permit a
16	16	person to receive a benefit or payment under the Medicaid program
17	17	that is not authorized or that is greater than the benefit or
18	18	payment that is authorized;
19	19	(2) knowingly conceals or fails to disclose
20	20	information that permits a person to receive a benefit or payment
21	21	under the Medicaid program that is not authorized or that is greater
22	22	than the benefit or payment that is authorized;
23	23	(3) knowingly applies for and receives a benefit or
24	24	payment on behalf of another person under the Medicaid program and
25	25	converts any part of the benefit or payment to a use other than for
26	26	the benefit of the person on whose behalf it was received;
27	27	(4) knowingly makes, causes to be made, induces, or
28	28	seeks to induce the making of a false statement or
29	29	misrepresentation of material fact concerning:
30	30	(A) the conditions or operation of a facility in
31	31	order that the facility may qualify for certification or
32	32	recertification required by the Medicaid program, including
33	33	certification or recertification as:
34	34	(i) a hospital;
35	35	(ii) a nursing facility or skilled nursing
36	36	facility;
37	37	(iii) a hospice;
38	38	(iv) an intermediate care facility for the
39	39	mentally retarded;
40	40	(v) an assisted living facility; or
41	41	(vi) a home health agency; or
42	42	(B) information required to be provided by a
43	43	federal or state law, rule, regulation, or provider agreement
44	44	pertaining to the Medicaid program;
45	45	(5) except as authorized under the Medicaid program,
46	46	knowingly pays, charges, solicits, accepts, or receives, in
47	47	addition to an amount paid under the Medicaid program, a gift,
48	48	money, a donation, or other consideration as a condition to the
49	49	provision of a service or product or the continued provision of a
50	50	service or product if the cost of the service or product is paid
51	51	for, in whole or in part, under the Medicaid program;
52	52	(6) knowingly presents or causes to be presented a
53	53	claim for payment under the Medicaid program for a product provided
54	54	or a service rendered by a person who:
55	55	(A) is not licensed to provide the product or
56	56	render the service, if a license is required; or
57	57	(B) is not licensed in the manner claimed;
58	58	(7) knowingly makes or causes to be made a claim under
59	59	the Medicaid program for:
60	60	(A) a service or product that has not been
61	61	approved or acquiesced in by a treating physician or health care
62	62	practitioner;
63	63	(B) a service or product that is substantially
64	64	inadequate or inappropriate when compared to generally recognized
65	65	standards within the particular discipline or within the health
66	66	care industry; or
67	67	(C) a product that has been adulterated, debased,
68	68	mislabeled, or that is otherwise inappropriate;
69	69	(8) makes a claim under the Medicaid program and
70	70	knowingly fails to indicate the type of license and the
71	71	identification number of the licensed health care provider who
72	72	actually provided the service;
73	73	(9) conspires to commit a violation of Subdivision
74	74	(1), (2), (3), (4), (5), (6), (7), (8), (10), (11), (12), or (13)
75	75	[knowingly enters into an agreement, combination, or conspiracy to
76	76	defraud the state by obtaining or aiding another person in
77	77	obtaining an unauthorized payment or benefit from the Medicaid
78	78	program or a fiscal agent];
79	79	(10) is a managed care organization that contracts
80	80	with the Health and Human Services Commission or other state agency
81	81	to provide or arrange to provide health care benefits or services to
82	82	individuals eligible under the Medicaid program and knowingly:
83	83	(A) fails to provide to an individual a health
84	84	care benefit or service that the organization is required to
85	85	provide under the contract;
86	86	(B) fails to provide to the commission or
87	87	appropriate state agency information required to be provided by
88	88	law, commission or agency rule, or contractual provision; or
89	89	(C) engages in a fraudulent activity in
90	90	connection with the enrollment of an individual eligible under the
91	91	Medicaid program in the organization's managed care plan or in
92	92	connection with marketing the organization's services to an
93	93	individual eligible under the Medicaid program;
94	94	(11) knowingly obstructs an investigation by the
95	95	attorney general of an alleged unlawful act under this section;
96	96	(12) knowingly makes, uses, or causes the making or
97	97	use of a false record or statement material to [conceal, avoid, or
98	98	decrease] an obligation to pay or transmit money or property to this
99	99	state under the Medicaid program, or knowingly conceals or
100	100	knowingly and improperly avoids or decreases an obligation to pay
101	101	or transmit money or property to this state under the Medicaid
102	102	program; or
103	103	(13) knowingly engages in conduct that constitutes a
104	104	violation under Section 32.039(b).
105	105	SECTION 2. Section 36.104, Human Resources Code, is amended
106	106	by amending Subsection (b) and adding Subsection (b-1) to read as
107	107	follows:
108	108	(b) If the state declines to take over the action, the
109	109	person bringing the action may proceed without the state's
110	110	participation. A person proceeding under this subsection may
111	111	recover for an unlawful act for a period of up to six years before
112	112	the date the lawsuit was filed, or for a period beginning when the
113	113	unlawful act occurred until up to three years from the date the
114	114	state knows or reasonably should have known facts material to the
115	115	unlawful act, whichever of these two periods is longer, regardless
116	116	of whether the unlawful act occurred more than six years before the
117	117	date the lawsuit was filed. Notwithstanding the preceding
118	118	sentence, in no event shall a person proceeding under this
119	119	subsection recover for an unlawful act that occurred more than 10
120	120	years before the date the lawsuit was filed.
121	121	(b-1) On request by the state, the state is entitled to be
122	122	served with copies of all pleadings filed in the action and be
123	123	provided at the state's expense with copies of all deposition
124	124	transcripts. If the person bringing the action proceeds without
125	125	the state's participation, the court, without limiting the status
126	126	and right of that person, may permit the state to intervene at a
127	127	later date on a showing of good cause.
128	128	SECTION 3. Subsections (b) and (c), Section 36.110, Human
129	129	Resources Code, are amended to read as follows:
130	130	(b) If the court finds that the action is based primarily on
131	131	disclosures of specific information, other than information
132	132	provided by the person bringing the action, relating to allegations
133	133	or transactions in a Texas or federal criminal or civil hearing, in
134	134	a Texas or federal legislative or administrative report, hearing,
135	135	audit, or investigation, or from the news media, the court may award
136	136	the amount the court considers appropriate but not more than 10
137	137	[seven] percent of the proceeds of the action. The court shall
138	138	consider the significance of the information and the role of the
139	139	person bringing the action in advancing the case to litigation.
140	140	(c) A payment to a person under this section shall be made
141	141	from the proceeds of the action. A person receiving a payment under
142	142	this section is also entitled to receive from the defendant an
143	143	amount for reasonable expenses, reasonable attorney's fees, and
144	144	costs that the court finds to have been necessarily incurred. The
145	145	court's determination of expenses, fees, and costs to be awarded
146	146	under this subsection shall be made only after the defendant has
147	147	been found liable in the action or the claim is settled [state
148	148	settles an action with a defendant that the court determined, after
149	149	a hearing, was fair, adequate, and reasonable in accordance with
150	150	Section 36.107(c)].
151	151	SECTION 4. Subsection (b), Section 36.113, Human Resources
152	152	Code, is amended to read as follows:
153	153	(b) The court shall dismiss [A person may not bring] an
154	154	action or claim under this subchapter, unless opposed by the
155	155	attorney general, if substantially the same [that is based on the
156	156	public disclosure of] allegations or transactions as alleged in the
157	157	action or claim were publicly disclosed in a Texas or federal
158	158	criminal or civil hearing in which the state or an agent of the
159	159	state is a party, in a Texas legislative or administrative report,
160	160	or other Texas hearing, audit, or investigation, or from the news
161	161	media, unless the person bringing the action is an original source
162	162	of the information. In this subsection, "original source" means an
163	163	individual who:
164	164	(1) prior to a public disclosure under this
165	165	subsection, has voluntarily disclosed to the state the information
166	166	on which allegations or transactions in a claim are based [has
167	167	direct and independent knowledge of the information on which the
168	168	allegations are based and has voluntarily provided the information
169	169	to the state before filing an action under this subchapter that is
170	170	based on the information]; or
171	171	(2) has knowledge that is independent of and
172	172	materially adds to the publicly disclosed allegation or
173	173	transactions [allegations] and who has voluntarily provided the
174	174	information to the state before filing an action under this
175	175	subchapter [that is based on the information].
176	176	SECTION 5. Section 36.115, Human Resources Code, is amended
177	177	by amending Subsection (a) and adding Subsection (c) to read as
178	178	follows:
179	179	(a) A person, including an employee, contractor, or agent,
180	180	who is discharged, demoted, suspended, threatened, harassed, or in
181	181	any other manner discriminated against in the terms and conditions
182	182	of employment because of a lawful act taken by the person or
183	183	associated others in furtherance of an action under this
184	184	subchapter, including investigation for, initiation of, testimony
185	185	for, or assistance in an action filed or to be filed under this
186	186	subchapter, or other efforts taken by the person to stop one or more
187	187	violations of Section 36.002 is entitled to:
188	188	(1) reinstatement with the same seniority status the
189	189	person would have had but for the discrimination; and
190	190	(2) not less than two times the amount of back pay,
191	191	interest on the back pay, and compensation for any special damages
192	192	sustained as a result of the discrimination, including litigation
193	193	costs and reasonable attorney's fees.
194	194	(c) A person must bring suit on an action under this section
195	195	not later than the third anniversary of the date on which the cause
196	196	of action accrues. For purposes of this section, the cause of
197	197	action accrues on the date the retaliation occurs.
198	198	SECTION 6. Subsection (c), Section 36.113, Human Resources
199	199	Code, is repealed.
200	200	SECTION 7. The changes in law made by this Act to Section
201	201	36.002, Human Resources Code, apply only to conduct that occurs on
202	202	or after the effective date of this Act. Conduct that occurs before
203	203	the effective date of this Act is governed by the law in effect at
204	204	the time the conduct occurred, and that law is continued in effect
205	205	for that purpose.
206	206	SECTION 8. The changes in law made by this Act to Sections
207	207	36.110 and 36.113, Human Resources Code, apply only to a civil
208	208	action for a violation of Section 36.002, Human Resources Code, as
209	209	amended by this Act, commenced on or after the effective date of
210	210	this Act. A civil action commenced before the effective date of
211	211	this Act is governed by the law in effect immediately before the
212	212	effective date of this Act, and that law is continued in effect for
213	213	that purpose.
214	214	SECTION 9. The changes in law made by this Act to Section
215	215	36.115, Human Resources Code, apply only to a cause of action that
216	216	accrues on or after the effective date of this Act. A cause of
217	217	action that accrued before the effective date of this Act is
218	218	governed by the law applicable to the cause of action immediately
219	219	before the effective date of this Act, and that law is continued in
220	220	effect for that purpose.
221	221	SECTION 10. This Act takes effect September 1, 2013.